Use Photos in Advertisements? Take These Steps to Avoid a Lawsuit

Using eye-catching images on your company's website or in advertising is a good way to capture a potential customer's attention. But even if you're careful to select an image with copyright permission, your business could still end up in a sticky legal situation.

In 2007 Virgin Mobile created a series of advertisements with images from photo-sharing platform Flickr. The photos were made available under a Creative Commons license, which was developed to allow photographers to share their work under a variety of copyright licenses.

One image, of 15-year-old Alison Chang was printed with slogans such as "Dump Your Pen Friend" printed on the photo. Virgin Mobile claimed the photo was licensed under a Creative Commons attribution license, but the teen’s parents sued, alleging their daughter’s privacy rights had been violated.

The case was dismissed on procedural grounds in 2009 (meaning the court held that since the advertisements ran primary in Australia, Virgin Mobile didn’t have sufficient contact with Texas, where the suit was brought). But it raises an important issue -- the right of publicity. The right of publicity provides for damages when someone's name, voice, image or likeness is used without their permission for a commercial use. You’ve probably heard that celebrities have the right of publicity, but so do everyday people.

Evan Brown, a Chicago technology and intellectual property attorney and publisher of the Internet Cases blog, notes that a business's first impulse is to consider copyright issues, but he warns that right of publicity issues are just as important.

These rights, like privacy and the right of publicity, vary by state and are distinct from copyright laws.

Knowing which licenses and rights you have can go a long way to prevent problems like these from affecting your business. So, what can business owners do to protect themselves? Here are three things, Brown suggests business owners keep in mind when selecting a photo for commercial use.

1. Understand the image's copyrights. First, know what rights are conveyed by the license. If the photo is going to be used in an advertisement, check to see if it’s available for commercial use. Some images are permitted for only for editorial but not commercial use. Sites utilizing Creative Commons (like Flickr) avoid legalese and allow copyright owners to specify which types of rights (if any) they reserve in their work.

For example, the Attribution license is the broadest license available (allowing for all types of use provided the user attributes the work to the copyright owner.) On the other end of the spectrum is the Attribution/Non-Commercial/No Derivative license, which permits use of the image but prohibits commercial use and any changes to the image. Detailed information about the various types of Creative Commons licenses, are listed on their site.

2. Check for a model release. If the photo includes a person, verify whether that person (or, in the case of a child, their guardian) signed a publicity release (also known as a model release) and consents to the proposed use. Generally you can find this out by contacting the photographer or stock photo company.

3. Review agreements with your creative team. Finally, if you work with an advertising agency, Brown suggests reviewing your agreement for an indemnification clause. Indemnification clauses in contracts provide protection for businesses that may be sued for damages by a third-party.